AYW16 v Minister for Immigration

[2019] FCCA 2630

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYW16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2630

Catchwords:
MIGRATION – Application for protection visa – inconsistencies in applicant’s claims – applicant held not to be a credible witness – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss. 36, 499.

Cases cited:

Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: AYW16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 845 of 2016

Judgment of: Judge Egan

Hearing date: 11 September 2019

Date of Last Submission: 11 September 2019

Delivered at: Melbourne

Delivered on: 11 September 2019

REPRESENTATION

Applicant: In Person

Counsel for the First Respondent: Mr. C. Tran

Solicitors for the First Respondent: Australian Government Solicitor

Second Respondent:  Submitting Appearance

ORDERS

1. The application for review filed on 26 April 2016 be dismissed.

2. The applicant pay the First Respondent’s costs of and incidental to the application fixed in the amount of $6,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 845 of 2016

AYW16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a 28 year old citizen of Bangladesh.  He arrived in Australia as an unauthorised maritime arrival on 3 January 2013.

2. On 29 May 2013, the applicant applied for a protection visa (class XA). 

3. On 31 October 2014, a delegate to the Minister refused to grant the visa.  On 6 November 2014, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.

4. On 4 April 2016, after a hearing before the Tribunal on 4 March 2016, and after receipt of further material from the applicant after such hearing, the Tribunal confirmed the delegate’s decision. 

5. On 26 April 2016, the applicant filed an originating application seeing judicial review of the decision of the Tribunal.

6. The grounds for review as set out in such application are as follows:

   1. The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party (BNP) prior to my departure from Bangladesh.

   2. The Honourable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.

   3. The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.

   4. The Administrative Appeal Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.

   5. The Administrative Appeals Tribunal erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated.

7. The claims of the applicant for protection were as set out in paragraphs [8]-[14] inclusive of the Tribunal reasons.  Those claims are as follows:

   8. To the Tribunal, thee applicant said that he ceased attending school around 2005 or 2006 because he did not like it. After this he would go around with friends but also on occasions he would go places with his uncle who held the position of general secretary for the BNP in the applicant's local area which comprised about eight or ten different villages. The applicant said that this was the highest position in the party for that particular area. When asked what he would do when going around with his uncle, the applicant said that his uncle belonged to a council or corporation involved in public works such as developing roads, schools and mosques as well as holding cultural functions. He also said that in different villages in the local area meetings would be held in a public place where people could come forward and complain about whatever problems they had related to these public works and the applicant's uncle would discuss getting those problems resolved.

   9. The applicant said that this council or corporation was generally under the government and made up of people who belonged to whichever party was in power at the time. When the applicant began helping his uncle, the BNP was in government in Bangladesh. Accordingly, the applicant told the Tribunal that this work he did with his uncle was, in effect, through and for the BNP. In approximately 2007, at his uncle's suggestion, the applicant became more involved in assisting him. When asked what activities he undertook from that time, the applicant said that he would supervise workers engaged in public projects such as building roads, madrassahs and mosques. In addition to supervising the workers the applicant also handled funds allocated for these projects. In this respect, his uncle would tell him what funds were available and what had to be done with them.

   10. When asked what else he did for the BNP once he became more involved, the applicant said that during elections he would go from house to house and ask people to vote for the party. When asked for how many elections he did that work, the applicant said that he twice campaigned during council elections and on one occasion for the election of the national .government which he thought was held in late 2008. He said that he left Bangladesh approximately two or three months before that election but he was involved in going to people's homes and telling them to vote for the party up until that time. This campaign work also included distributing leaflets and putting up posters for the party. When asked why he left Bangladesh in 2008, the applicant said that while he was working for the BNP, people from the Awami League would make accusations that the funds being used for the public works with which the applicant was involved were being misused and, in effect, embezzled.

   11. The applicant said that the Awami League would make that allegation because they could not tolerate the fact that the party was doing good work for the people. The Awami League would also say that once they got in power this allocation of funds to the BNP would stop. The applicant said that people from the Awami League would make these accusations to him in person wherever he came across them in the local area. In addition, they would also say to the applicant that if they got into power he would be dead. Because, at the time, the caretaker government was in power, the applicant was never physically attacked by these people and only verbally threatened. He thought that on more than ten occasions people from the Awami League made the threat that they would kill him once they got into power. They began making those threats more or less once the caretaker government came into power in 2007.

   12. Over time, the applicant found that he could not put up with this behaviour, his parents told him it was not safe for him to remain in Bangladesh and that was why he left the country later in 2008. He travelled from Bangladesh to Malaysia where he remained until late 2012 when he came to Australia. He said that after he left Bangladesh and while he was living in. Malaysia his family told him that people from the Awami League had gone to his family home looking for him and saying that they would kill him. They also harassed his sister when she was going to school. This harassment became so disturbing for her that she ceased attending school for some period of time. More recently, in 2015 she resumed going to school but again people from the Awami League harassed her and she had to stop.

   13. To the Tribunal, the applicant said that in addition to these visits to the family home by the Awami League in which they asked for the applicant and said they would kill him, they would also demand money from the applicant's father. He said that they first went to his uncle and demanded money but then they turned to his father and demanded money from him. To placate them, the applicant's father gave them money but they would always ask for more on their visits. To the Tribunal, the applicant said that at the time he left Bangladesh his uncle was still in the local area undertaking his work for the BNP. When asked if his uncle stopped living at his home in the local area, the applicant said nobody knew where he was. He said that when the Awami League came into power his uncle could not stay in the village but he did return.

   14. When questioned further about this, the applicant said that after the Awami League came into power, they ransacked and damaged his home. He said that his uncle was not able to stay in the village after that. When asked if his uncle ever returned to the village, the applicant first said that he did not know. He then said that he thought his uncle did make an attempt to return but his house was damaged. When questioned further about this, the applicant finally said that his uncle tried to return to his village to live on three or four separate occasions and on each of those occasions his house was ransacked causing him to have to leave again. He said that these events took place while he was in Malaysia.

8. At [1] of its reasons, the Tribunal recorded that on 4 March 2016 the applicant appeared by video conference to give evidence and present arguments.  The applicant received assistance from an interpreter in the Bengali and English languages.  He was also represented at the hearing by a registered migration agent.  

9. At [2]-[6] inclusive of its reasons, the Tribunal appropriately set out the relevant criteria for the grant of protection and the obligations for protection owed to refugees. It specifically referred to the provisions of s. 36(2)(a) and to s. 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). It also, relevantly, referred to article 1 and article 1A(2) of the Refugee Convention. It also recorded that it had had regard to Ministerial Direction No. 56, made pursuant to the provisions of s. 499 of the Act, and the relevant PAM3 policy guidelines in relation thereto.

10. At [15]-[18] inclusive of its reasons, the Tribunal referred to the omission of significant claims of the applicant from the applicant’s written statement.  The written statement, dated 14 May 2013, lodged by the applicant with his application for a protection visa, asserted that the applicant was a supporter of the BNP, which is a political party in Bangladesh.  The applicant stated that his uncle was a member of that party, and that he had helped his uncle with party activities.  He stated that he feared harm from the opposing Awami League because of his involvement with the BNP.  The applicant asserted that he had rallied people to vote for the BNP, and he mentioned that his uncle was under threat because of his association with the BNP.  The applicant stated that he was afraid to return to Bangladesh because the Awami League was in power.  The applicant also volunteered that his village was in a poverty-stricken area, and that that was another reason why he had left Bangladesh. 

11. At [16] of its reasons, the Tribunal recorded that it had put to the applicant that his written statement made no mention of significant claims which were advanced by the applicant to the Tribunal at the hearing.  For example, it was noted that the applicant did not mention in his written statement that members of the Awami League had allegedly approached him in Bangladesh and threatened to kill him a number of times.  Neither was it mentioned that the Awami League had allegedly harassed his sister, that members of the Awami League had gone to his home looking for him, that such members had extorted money from his father, and that on three or four occasions members of the Awami League had ransacked the applicant’s uncle’s home, thereby causing the applicant’s uncle to flee from his village on each occasion.  In response, the applicant was said to have conceded that his written statement did not mention any of those matters, only that he had been threatened.  The Tribunal put to the applicant that in fact his written statement did not even contain any claim that he had been threatened when he was in Bangladesh. 

12. At [17] of its reasons, the Tribunal noted that it had put to the applicant that he was able to say in his written statement that he supported the BNP, and that he undertook activities for the party which founded the basis for his having a fear of harm by way of retaliation from members of the Awami League.  The applicant stated that when he made those claims to the Tribunal, he did so because he had been told by the Tribunal at the commencement of the hearing that proceedings before the Tribunal were confidential and he should feel free to say what he wanted to say about his protection claims. 

13. At [18] of its reasons, the Tribunal found that the applicant’s response was not a satisfactory response or explanation as to the omission by him of significant claims from his written statement.  It was noted by the Tribunal that it did not accept that concerns about privacy or confidentiality would have prevented the applicant from mentioning in his statement the various claims which he made to the Tribunal, and which were allegedly relevant to his case for protection. 

14. At [20] of its reasons, the Tribunal noted that the applicant, when asked why he did not tell the delegate that he was involved in various projects of infrastructure in Bangladesh, which projects had been allocated through the party and through his uncle, the applicant said that he was not articulate, and was nervous, and so, therefore, did not mention it.  Such an explanation was not accepted by the Tribunal. 

15. The applicant had been involved in construction projects since 2007, and if the applicant had in fact been so involved, it was noted by the Tribunal that there was no good reason why he would not have mentioned that fact.  The Tribunal found the applicant’s evidence to the delegate, and to the Tribunal about what activities he undertook for the party, to be inconsistent. 

16. At [22] of its reasons, the Tribunal recorded that it did not accept the applicant’s account of why his uncle was being sought out by members of the Awami League.  It was noted that the uncle, according to the applicant, was merely an ordinary member of the party, and not a functionary.  The Tribunal also noted that it was inconsistent on the part of the applicant for him not to have told the delegate that his uncle was allegedly the party general secretary for the local area, which was also the highest position in the party for that area, and why that had not been passed on to the delegate. The applicant’s response was found to be unconvincing. 

17. At [23] of its reasons, the Tribunal recorded that it had carefully considered country information which had been provided to it by the applicant’s representative concerning the structure and flexibility of roles within the BNP.  Even accepting that there was flexibility of roles within the BNP, the Tribunal did not accept that it was credible for the applicant to have not mentioned the high position of his uncle within the party, if, in fact, the uncle had held such a high position. 

18. At [24] – [27] inclusive of its reasons, the Tribunal commented upon the applicant’s claims that he had suffered harm in Bangladesh.  It noted that the applicant had asserted that, because of his having canvassed support from the BNP, he was threatened to be killed.  The Tribunal otherwise asked the applicant why he did not tell the delegate that, in fact, the Awami League’s threat to him was related to mismanagement of funds allocated for various infrastructure projects arranged through the BNP.

19. The Tribunal noted that it was inconsistent that the applicant had made no mention to the Tribunal about being threatened with harm for undertaking door to door canvassing and the soliciting of voters, the applicant stating that, because he had been detained after arriving in Australia, it was difficult for him to remember such things, such that he was a “blank page” and unable to answer questions effectively.  The Tribunal did not find such a response to be convincing.  It was noted that the applicant had been questioned closely by the delegate about events in Bangladesh, and why the applicant had alleged that he was afraid to return there, the account which was given to the delegate being inconsistent with the account more recently given to the Tribunal.

20. It was also noted by the Tribunal that the applicant did not convey alleged threats to kill him as having been made on 10 occasions, threats which by their number one would have expected to have been conveyed to the delegate.  The applicant said that he cannot recall why he would not have specifically provided that evidence to the delegate.  The Tribunal was not persuaded by such response.  The Tribunal drew a distinction between the applicant’s claims, stating that the applicant feared that the Awami League would harm him, as opposed to the Awami League threatening to kill him.  The Tribunal noted that it would have reasonably expected the applicant to have told the delegate about such death threats, if, in fact, they had been made. 

21. At [28] – [31] inclusive of its reasons, the Tribunal dealt in detail with the applicant’s claims relating to alleged harm being inflicted upon the applicant’s uncle.  The Tribunal rejected the applicant’s responses, and did not believe the applicant when he said that his uncle had been harmed by the Awami League members.  Again, the Tribunal was not satisfied that had the applicant’s claims, concerning the uncle in fact occurred, nor that there was a good reason why the applicant would not have conveyed those matters to the delegate. 

22. Similarly, at [32]-[35] of its reasons, the Tribunal pointed to inconsistencies of the same kind relating to the applicant’s assertions concerning harm inflicted to his family.  It was noted that the applicant had a very good opportunity to respond to questions directly put to him by the delegate concerning the nature of harm and the reasons for harm allegedly being inflicted by members of the Awami League upon members of the applicant’s family, but noted that the applicant’s responses were unsatisfactory and conflicting in that regard. 

23. It was noted by the Tribunal at [35] of its reasons that the applicant knew that he was being invited to provide all and any information which he considered relevant to his protection claims when he was interviewed by the delegate, and that because the applicant did not do so, the Tribunal was not prepared to accept the applicant’s later version of events. 

24. At [36]-[45] of its reasons, the Tribunal dealt in detail with the applicant’s claims for refugee status.  It was noted by the Tribunal that it did not believe the applicant’s claims that the applicant supported, belonged to, and undertook activities on behalf of the BNP, or that he had an uncle who belonged to and also undertook activities for the BNP.  It similarly did not accept that the applicant’s family supported the BNP. 

1. In reaching its conclusion on such point, the Tribunal noted that it had taken into account and considered a letter submitted to the department from a person said to be a Local Government officer repeating the claims made by the applicant about harm having been inflicted to the applicant’s uncle, and also about the threat that supporters of the Awami League posed to the applicant. The Tribunal found that the contents of such document did not overcome the concerns about the applicant’s credibility held by the Tribunal.  It was also noted at [39] of the reasons of the Tribunal that the Tribunal had taken into account submissions made by the applicant’s representative on the question of credibility, both at the hearing and by letter dated 29 February 2016. 

2. At [41] of its reasons, the Tribunal recorded that it had carefully considered the written and oral submissions made on behalf of the applicant, but that such submissions did not change its opinion that the applicant was not telling the truth.  The Tribunal noted that the concerns it held about the applicant’s credibility related to basic aspects of the account of events on which the applicant’s protection claims were based.  The Tribunal specifically made reference to its having considered the further submissions made on behalf of the applicant, stating nevertheless that it remained satisfied that the concerns that it held about the applicant’s credibility were because it found that the applicant was not a witness of truth, and that his evidence was false ([43] of Tribunal reasons).

3. The Tribunal clearly found that there was no credible evidence that the applicant had suffered any harm in Bangladesh related to his asserted involvement with the BNP.  At [45] of its reasons, the Tribunal found that the applicant’s evidence was false, and that accordingly, there was not a real chance that the applicant would suffer serious harm in Bangladesh, nor that he held a well-founded fear of persecution based on any Convention ground. 

4. At [46] of its reasons, the Tribunal found that for the same reasons, there was not a real chance that the applicant would suffer serious harm in Bangladesh, or that there was a real risk that he would suffer significant harm there. For those reasons, the applicant was found not to be a person to whom the complementary protection criteria applied under the provisions of section 36(2)(aa) of the Act. The Tribunal accordingly found that the decision of the delegate ought to be affirmed.

5. The grounds for review in broad form sought that the court undertake an impermissible merits review. 

6. As to ground 1, the applicant takes issue with a finding of fact made by the Tribunal to the effect that the applicant was not a victim of persecution.  The making of such a finding by the Tribunal was within the purview of its duty to make appropriate findings of fact.  In those circumstances, the ground is misconceived and is without merit.  The Tribunal was entitled to make adverse credibility findings against the applicant as it did. It did so after carefully considering all of the evidence before it as well as the submissions made to it.

7. As to ground 2, there is nothing to suggest that the Tribunal failed to comply with the natural justice hearing rules as set out in division 4 of part 7 of the Act.  The applicant was not denied procedural fairness in any respect. The applicant was invited to participate in the hearing before the Tribunal, and every opportunity was afforded to him to allow him to make appropriate oral and written submissions. 

8. The Tribunal appropriately addressed all of the claims made by the applicant and put its concerns to the applicant during the course of the hearing.  It cannot be said that the Tribunal kept any relevant matter or consideration from the applicant during the course of the conduct of the hearing.  The Tribunal asked relevant questions of the applicant as it was entitled to do.  Those questions elicited glaring inconsistencies in the account given by the applicant relating to his experiences in Bangladesh.  Those different accounts were irreconcilable.  There is no merit to such ground.

9. As to ground 3, this ground seeks to impugn the Tribunal’s adverse credibility findings made against the applicant.  In doing so, the applicant invites the court to undertake a merits review.  There is nothing of merit to such ground.

10. As to ground 4, this ground again relates to a question of factual findings made by the Tribunal.  It falls into the same category as the argument advanced under ground 3.  This ground, for similar reasons, is without merit.

11. As to ground 5, though phrased in a different way to grounds 3 and 4, such ground is similarly an attack on factual findings made by the Tribunal.  The Tribunal has at length set out the reasons why it found the applicant not to be a credible witness, and for the applicant therefore not to have established his refugee status. 

12. It cannot be said that the Tribunal, when analysing all of the claims made by the applicant, and all of the evidence presented by the applicant to the Tribunal, had failed to make an obvious inquiry about a critical fact. [1]

    [1]     Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27] inclusive.

13. It cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

14. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” The applicant has not established jurisdictional error on the part of the Tribunal.  The application for review is without merit and is dismissed.

15. The application for review is without merit and is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 19 September 2019